I Need The Big Wigs Hadit

[Mr cue]

ok i was 10% from 94 until 2001 when i put in my own paper i was granted 60%iu because i had not work since 94. i did a cue of my 94 claim and the bva say there can not be a cue of a claim that is still open. so remaned it to amc that whole story but i got the denied from amc say it on the way back to board. call vba today was told it in transit. ok now if my claim from 94 is still open than that means my eef date should be 94 for my 60% iu right i look at laws anyone every since any thing like this.

[Mr cue]

this is my bva Citation Nr: 0928705

Decision Date: 07/31/09 Archive Date: 08/04

[carlie]

http://www4.va.gov/vetapp09/files4/0928705.txt

Citation Nr: 0928705

Decision Date: 07/31/09 Archive Date: 08/04/09

DOCKET NO. 09-19 043 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Buffalo,

New York

THE ISSUES

1. Whether a June 1994 rating decision granting service

connection for a muscle strain of the left neck, rated 10

percent under Diagnostic Code 5233, contains clear and

unmistakable error (CUE).

2. Whether a June 1994 rating decision denying service

connection for a left elbow disability contains CUE.

3. Entitlement to service connection for residuals of a left

elbow fracture with parasthesias.

4. Entitlement to an initial evaluation in excess of 10

percent for a muscle strain of the left neck.

WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)

ATTORNEY FOR THE BOARD

W. H. Donnelly, Counsel

INTRODUCTION

Please note this appeal has been advanced on the Board's

docket pursuant to 38 C.F.R. § 20.900© (2008). 38 U.S.C.A.

§ 7107(a)(2) (West 2002).

The Veteran served on active duty with the United States Army

from October 1, 1993 to December 13, 1993. He received an

uncharacterized discharge.

This matter comes before the Board of Veterans' Appeals

(Board) on appeal from June 1994 and September 2008 rating

decisions by the Buffalo, New York, Regional Office (RO) of

the United States Department of Veterans Affairs (VA). The

June 1994 decision denied service connection for a left elbow

and hand disability, and granted service connection for a

muscle strain of the left neck, rated 10 percent disabling.

The September 2008 decision found no CUE in the June 1994

rating decision.

The Veteran testified at a May 2008 pre-decisional hearing

and at a February 2009 hearing before a Decision Review

Officer (DRO) at the RO in connection with his CUE claims.

He declined a Board hearing. Transcripts of the local

hearings are associated with the claims file.

The issues of service connection for a left elbow disability

and evaluation of the neck disability are addressed in the

REMAND portion of the decision below and are REMANDED to the

RO via the Appeals Management Center (AMC) in Washington, DC.

FINDINGS OF FACT

1. Service connection for a left elbow disability was denied

in a June 1994 decision; service connection for a neck

disability was granted in the same decision and rated 10

percent disabling.

2. The Veteran filed a timely Notice of Disagreement (NOD)

with the June 1994 decision in October 1994. A Statement of

the Case (SOC) was issued in December 1994.

3. In January 1995, within one year of the June 1994 denial,

the Veteran, through his representative, filed correspondence

referencing both issues and expressing an intent to pursue

his appeals; this correspondence must be accepted as a

substantive appeal sufficient to perfect the appeal to the

Board.

4. The October 2007 claim of CUE in the June 1994 decision

addresses issues currently pending on appeal.

CONCLUSIONS OF LAW

1. The Veteran's appeal as to the issue of CUE in the denial

of service connection for a left elbow disability is

dismissed as no justiciable case or controversy is before the

Board at this time. 38 U.S.C.A. §§ 5109A, 7104, 7105 (West

2002); 38 C.F.R. §§ 3.105, 19.4, 20.101, 20.200 (2008).

2. The Veteran's appeal as to the issue of CUE in the

assignment of an initial 10 percent rating for a left neck

muscle strain is dismissed as no justiciable case or

controversy is before the Board at this time. 38 U.S.C.A.

§§ 5109A, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.105, 19.4,

20.101, 20.200 (2008).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As provided for by the Veterans Claims Assistance Act of 2000

(VCAA), the United States Department of Veterans Affairs (VA)

has a duty to notify and assist claimants in substantiating a

claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,

5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and

3.326(a).

In this case, VCAA notice ands assistance is not required

because the issue presented involves a claim for review of a

prior final regional office decision on the basis of clear

and unmistakable error (CUE). The VCAA is not applicable to

CUE matters. See Livesay v. Principi, 15 Vet. App. 165, 179

(2001) (en banc); Parker v. Principi, 15 Vet. App. 407

(2002).

In June 1994, the RO issued a decision denying service

connection for a left elbow disability and granting service

connection for a neck disability, initially rated 10 percent

disabling. The Veteran filed an NOD with these decisions in

October 1994, and the RO issued an SOC in December 1994. In

January 1995, within the one year appeals period from the

denial of the claims, the Veteran, through his

representative, filed a statement which must be accepted as a

substantive appeal on those issues.

The Veteran requested a personal hearing, and referenced both

the service connection and evaluation issues. He also noted

that both were currently on appeal, and that an SOC had been

issued. His filing manifests an intent to continue his

appeals. Resolving all doubt in favor of the Veteran, this

filing is the equivalent of a VA Form 9, Appeal to Board of

Veterans' Appeals, and perfects the appeals on both issues.

38 C.F.R. § 20.202. The RO failed to certify the issues to

the Board, and the Board has never taken any action on either

issue. The appeals remain open.

Regulations indicate that only "determinations which are

final and binding" are subject to revision based on CUE.

38 C.F.R. § 3.105(a). In this case, no final and binding

determination exists as to service connection for the left

elbow or the evaluation assigned for the neck disability.

The perfected appeal prevented the June 1994 decision from

becoming final.

Therefore, there can be no valid claim of CUE in that

decision at this time; such an allegation is premature.

There is no case or controversy pending before the Board as

contemplated by 38 U.S.C.A. §§ 7104, 7105 and 38 C.F.R.

§ 19.4. In the absence of any justiciable question, the

claim regarding CUE must be dismissed.

ORDER

The question of whether a June 1994 rating decision granting

service connection for a muscle strain of the left neck,

rated 10 percent under Diagnostic Code 5233, contains CUE is

dismissed.

The question of whether a June 1994 rating decision denying

service connection for a left elbow disability contains CUE

is dismissed.

REMAND

As was discussed above, the Veteran has timely perfected

appeals with regard to the issues of service connection for a

left elbow disability and initial evaluation of a left neck

muscle strain.

During the pendency of these appeals, the VCAA was enacted.

VA has a duty to notify and assist claimants in

substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,

5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a),

3.159 and 3.326(a). Adequate notice and assistance has not

been afforded the Veteran under the VCAA with regard to

either claim, and hence remand is required.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's

docket pursuant to 38 C.F.R. § 20.900© (2008). Expedited

handling is requested.)

1. Provide the Veteran with the notice

required under 38 U.S.C.A. § 5103(a) and

38 C.F.R. § 3.159(b), as well as Court

precedent, to include Dingess v.

Nicholson,

19 Vet. App. 473 (2006) (regarding notice

of assignment of effective dates and

disability evaluations).

2. The AMC/RO should specifically request

private medical records regarding

treatment of the left elbow and arm

disability from the time of injury to

service, or proper releases to allow VA to

obtain such on the Veteran's behalf. The

RO should review the claims file to ensure

that all the foregoing requested

development is completed, and arrange for

any additional development indicated, to

include provision of VA examinations.

3. The RO should then readjudicate the

claims on appeal. If any benefit sought

remains denied, the RO should issue an

appropriate SSOC and provide the Veteran

and his representative the requisite time

period to respond. The case should then be

returned to the Board for further appellate

review, if otherwise in order. No action

is required of the appellant unless he is

notified.

The appellant has the right to submit additional evidence and

argument on the matters the Board has remanded.

Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law

requires that all claims that are remanded by the Board of

Veterans' Appeals or by the United States Court of Appeals

for Veterans Claims for additional development or other

appropriate action must be handled in an expeditious manner.

See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).

______________________________________________

J. Parker

Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[Berta]

WOW-

I deal with Buffalo too-

"I filed CUE on the 1994 claim, but the BVA said there can not be a CUE of a still-open (pending) claim. The BVA remanded to AMC, and the AMC said my case was won in 2001. It's like they're playing or something. "

Did you fully respond to the AMC letter and state that it is incorrect and that they failed to follow the remand?

Were you yourself able to send them anything the remand asked them to get?

Did they actually send you a VCAA letter???????

Buffalo never sent me a proper VCAA letter in 2003-or VCAA response form.

If they do that they can easily continue to ignore evidence.

I suggest you try to get a vet rep with offices in or near this VARO on Elmwood Street.

Have you asked for a hearing or anything?

Stay away from the state and county VSOs-Buffalo has a DAV office.

[Berta]

." The AMC/RO should specifically request

private medical records regarding

treatment of the left elbow and arm

disability from the time of injury to

service, or proper releases to allow VA to

obtain such on the Veteran's behalf. The

RO should review the claims file to ensure

that all the foregoing requested

development is completed, and arrange for

any additional development indicated, to

include provision of VA examinations."

Do you have these records?

Have you sent them copies of these records?

Did they give you 30 days to disagree with their decision?

Did you get a response to them in time?

They are trying to set you up for a double remand- stall stall stall is the Mantra of Buffalo VARO.

They need medical evidence to show their past rating was wrong.

[Mr cue]

no paper i every send made it to amc on denied they say they rec nothing from me never had any treatment befoe army. it all a game 2001 i was granted 60% iu for my neck there is nothing about this. can bva grant befenits without it going back on remaned. they have 15 yr of evidence on denied nothing. say my elbow was preexisting condition checked i broke when 12 yr on enlistment they send me to 3 different exam everyone stated healed. had fall bone chip found on ex-ray nothing about this on denied or pass 94 rating. i am waiting for cases to make it back to bva before i raaise hell.once again if my 94 claim is still open and i was granted 60% iu 2001 so my effective date is now 94 it was my neck that when from 10% to 60%. i believe i won just as if there was a cue right.

[Philip Rogers]

As I see it the '94 claim remains open. At present a VCAA letter must be sent to you and you must be given time to respond to that letter. They should go back to '94 with their award or denial. I see it as a win, since they awarded 60% in '01. They may try a stepped award, if the records show that but I doubt they'll be able to do that. As to the elbow, it's a non-issue as they accepted you, knowing about the previous injury. jmo

pr

no paper i every send made it to amc on denied they say they rec nothing from me never had any treatment befoe army. it all a game 2001 i was granted 60% iu for my neck there is nothing about this. can bva grant befenits without it going back on remaned. they have 15 yr of evidence on denied nothing. say my elbow was preexisting condition checked i broke when 12 yr on enlistment they send me to 3 different exam everyone stated healed. had fall bone chip found on ex-ray nothing about this on denied or pass 94 rating. i am waiting for cases to make it back to bva before i raaise hell.once again if my 94 claim is still open and i was granted 60% iu 2001 so my effective date is now 94 it was my neck that when from 10% to 60%. i believe i won just as if there was a cue right.